Monday round-up

Posted Mon, January 23rd, 2012 9:45 am by Joshua Matz

Last week, the Court issued a per curiam opinion in the Texas redistricting case, Perry v. Perez. In that case, the Court returned the judge-drawn interim legislative district maps to the district court, with instructions to redraw the maps with greater deference to the redistricting plan already created by the Texas legislature and currently awaiting preclearance from the district court in Washington, D.C. The Court’s decision was followed shortly thereafter by a brief order staying the decision of a three-judge district court panel in a West Virginia redistricting case. Lyle Denniston of this blog covered the Court’s opinion here and the order here. Kali then rounded up many of the immediate reactions to the decision. Coverage and commentary continued through the weekend, from Michael Li at Texas Redistricting, Michael Dorf at Dorf on Law, Nina Totenberg at NPR, Michael McGough of the editorial board of the Los Angeles Times, Rick Hasen, Shira Toeplitz, and Ray Suarez at PBS (video with transcript), Alex Isenstadt of Politico, Rick Hasen at his Election Law Blog, John Kennedy of the Palm Beach Post, Justin Levitt at the Election Law Blog, and Joan Biskupic at her Court Beat blog.

Responding to last week’s decision in Golan v. Holder, in which the Court held that Congress may remove works from the public domain and restore their copyright protection pursuant to treaty obligations, the editorial board of the Los Angeles Times argues that the Court “misread[] the 1st Amendment and copyright law” and made it “more difficult for Americans to enjoy foreign works of art, including decades-old musical and literary masterpieces.” Julie Hilden also covers the decision at Verdict; she suggests that the Court should have “spoken up more loudly for creators generally, and for the central role they play—a role that the First Amendment and Copyright and Patent Clause clearly recognize, but that the Court somehow does not.”

Justices Scalia and Breyer appeared at a meeting of the South Carolina Bar Association on Saturday; in response to a question about the recent flood of political advertisements, Justice Scalia replied: “I don’t care who is doing the speech – the more the merrier . . . People are not stupid. If they don’t like it, they’ll shut it off.” The Associated Press (via the Boston Globe) and The Hill provide coverage. At the Huffington Post, Christine Pelosi responds to the Justice’s remarks by contending that “[w]omen in America cannot achieve our full economic and personal fulfillment as long as the concentration of wealth and power in the top 1% continues to stifle democratic voices and progressive policies,” concluding that “[t]o achieve equality, feminists can’t deal with injustice by agreeing to ‘shut it off’ — we must pursue Citizens United reform.”

Ruthann Robson of the Constitutional Law Prof Blog has posted a video that appears to show an Occupy protestor being arrested at the Court; she observes that “the Supreme Court Building’s status as a First Amendment-free zone also continues to be ripe for review.” The Washington Post, Associated Press (via Fox News), and the UK Telegraph also covered anti-Citizens United Occupy protests at the Court on Friday.

Michelle Singletary of the Washington Post discusses the Court’s decision earlier this month in CompuCredit v. Greenwood, in which the Court held that claims under the Credit Repair Organization Act can be subject to mandatory arbitration agreements. She concludes that the federal government should “thoroughly investigate what’s happening in arbitration cases.” [Disclosure: The author of this post worked on the CompuCredit merits brief on behalf of the respondent.]

At ACSblog, Mary Schmid Mergler describes last week’s decision in Maples v. Thomas as a “triumph of fundamental fairness over procedure and technicalities in our criminal justice system has grown increasingly rare.” At Mother Jones, Adam Serwer criticizes the dissent by Justices Thomas and Scalia.

At the San Jose Mercury News, Howard Mintz discusses United States v. Jones, the challenge to warrantless GPS tracking, which he describes as “a case that highlights the tensions between law enforcement needs and the privacy implications of new technologies that can track our every move.”

At Just Enrichment, Adam Chandler explains why Fisher v. University of Texas “almost certainly won’t be heard this Term,” while the editorial board of the New York Times Editorial Board discusses several other cases that might provide the Court with an opportunity to review affirmative action, adding that “[t]he push by Republican politicians and conservative justices to eliminate efforts to ensure diversity on campuses are squarely at odds with America’s racial history.”

At NPR‘s “On the Media,” Adam Liptak discusses the recent Montana Supreme Court opinion that many (including Lyle for this blog) have characterized as a rejection of Citizens United.

The Associated Press reports that “Ohio has asked the U.S. Supreme Court to uphold the state’s lethal injection procedures, arguing that minor deviations in policy don’t mean the system is unconstitutional.”

In his column for the Washington Post, George Will discusses the Medicaid issue in the healthcare case, concluding that, “if there is no outer limit on the capacity of this government to coerce the states, then federalism, which is integral to the Framers’ design, becomes evanescent.”

Paul Purpura of the New Orleans Times-Picayune reports on challenges faced by Louisiana as it complies with the Court’s 2010 opinion in Graham v. Florida, which held that juveniles convicted of crimes other than murder cannot be sentenced to life in prison.

Brian Wolfman of the Consumer Law and Policy Blog discusses an amicus brief filed in the health care case by 104 professors of health care law; former Solicitor General Charles Fried is lead counsel on the brief.

The editorial board of the Los Angeles Times urges the Court to use Coleman v. Maryland, a case about state sovereign immunity and the Family Medical Leave Act, as a chance to undo its previous “misinterpretation of the 11th Amendment” and allow citizens to sue their own state.

At UPI, Michael Kirkland notes that “every business day, thousands of government bodies at all levels begin sessions with prayers,” and discusses the Court’s denial of cert. in Forsyth County v. Joyner, a legislative prayer case.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.